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SoDA Blog Leadership Ideas and Opinions

SoDA’s Stance on SOPA and PIPA

by Bradley Gross, Esq. & SoDA General Counsel / January 18, 2012

Note: This blog entry is available in English only.

SoDA recognizes the very real problem of online copyright infringement. As producers and creators of some of the finest digital content in the world, SoDA’s members are often among the first to feel the sting of the unauthorized copying, use and manipulation of their creative works online. Protecting its members’ intellectual property, and ensuring that its members’ original, proprietary digital creations remain free from unauthorized use, is among SoDA’s highest priorities.

But freedom of speech is paramount to all. SoDA believes strongly that any legislation seeking to diminish online speech or curb online content must be both narrowly tailored and capable of being applied with precision. We have considered the Stop Online Piracy Act (“SOPA”) pending before the Senate, and its corresponding House bill, the Protect IP Act (“PIPA”), and believe that neither bill comports with these standards.

In addressing the vexing problem of online copyright infringement, we cannot allow ourselves to trample roughshod over the free speech rights of our colleagues, our neighbors and fellow citizens. SOPA and PIPA, however, do just that.

Among other things, the bills would empower individuals to extinguish entire websites merely by filing a unilateral notice in which it is alleged—but not proven—that the websites are “dedicated to the theft of U.S. property.” The person filing the notice would need only to state that he or she is “harmed” by the targeted websites; actual ownership of IP by the complaining individual would not be required. Notably, the amount of infringing material on a targeted website need not be particularly large or dominant; even minor acts of infringement could justify the termination of an otherwise lawfully operated site.

The bills would not require knowledge of infringing activity on the part of website owners, making innocent infringers vulnerable to attack. It is hard to see how social media sites, such as Facebook or Twitter, or content aggregators such as Google, could continue to operate effectively under those conditions.

Moreover, the number and scope of businesses impacted by the bills is neither limited nor clear. The bills would impact any website that “enables or facilitates” infringement by a third party–a category which, when taken to its logical end, could include a huge swath of innocent parties who might be only tangentially related to the business of an infringing website.

Finally, the bills would incentivize and encourage knee-jerk censorship activity by immunizing advertisers and payment processors from all liability if they discontinued their services based upon the suppositions and unproven allegations of persons claiming harm under SOPA or PIPA. Providing that type of immunity ignores the realities of online business. Simply put, business cannot be conducted in an environment where advertisers and payment processors have the unencumbered ability to withdraw their services based on the unproven harangue of a person claiming harm under SOPA or PIPA.

The time is ripe to address the issue of online copyright infringement, and we applaud Congress’ attention to the issue. However, neither SOPA nor PIPA poses viable solutions for the issues at hand. We implore Congress to start anew and create legislation that properly and fairly balances the principles of freedom of speech with the need to protect online digital content.

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A technology law attorney with thirty years of experience in the computer and technology fields, Brad is SoDA’s General Counsel and Legal Advisor. He educates SoDA’s members about the laws, cases and legal trends that impact the business of digital marketing, focusing in particular on intellectual property and contract issues that are crucial to the viability and stability of digital marketing agencies and their clients.